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Schneider v Warrnambool City Council

Schneider v Warrnambool City Council

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Case Copied 11 June 2021 72 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2020 03611

PETER SCHNEIDER	Plaintiff
v
WARRNAMBOOL CITY COUNCIL	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	23–25 March 2021
DATE OF JUDGMENT:	11 June 2021
CASE MAY BE CITED AS:	Schneider v Warrnambool City Council
MEDIUM NEUTRAL CITATION:	[2021] VSC 337

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CONTRACT — Chief Executive Officer (‘CEO’) appointed pursuant to s 94 Local Government Act 1989 and required to perform prescribed statutory functions — CEO appointed to an office within the meaning of s 41(1) Interpretation of Legislation Act 1984 — Power of appointment included power of termination — Exercise of power of termination subject to compliance with the rules of natural justice — CEO employed pursuant to contract — Contract subject to legislation affecting the Council — Council purported to exercise contractual right to terminate CEO’s appointment and employment for ‘no reason’ — ‘No reason’ ground of termination invalid by reason of inconsistency with statutory requirement to accord CEO natural justice.

ADMINISTRATIVE LAW — Exercise of statutory power of termination subject to compliance with rules of natural justice — Plaintiff denied natural justice — No notice of reasons for termination — No opportunity to respond to allegations of poor performance — Decision to terminate affected by bias by reason of pre-judgment — Decision to terminate invalid and of no legal effect — Certiorari available to quash purported termination of plaintiff’s appointment as CEO — Plaintiff entitled to declaration that termination of his appointment and employment as CEO was made in breach of the rules of natural justice — Plaintiff entitled to resume appointment and employment as CEO forthwith.

Local Government Act 1989 ss 3, 3C, 3F, 5(2), 22(1), 62A, 63(2), 65, 79(2), 80A, 81(9), (10), (12), (13A), 81Y, 93A(6), 94, 94A, 94C, 94D, 95AA, 95A, 97A, 104, 106, 108, 109 — Local Government Act 2020 ss 10, 14 — Interpretation of Legislation Act 1984 ss 41(1), (2) — Public Administration Act 2004 s 8 — Local Government (Miscellaneous Amendments) Act 1993 ss 4(2), 7, 8, 9, 10, 11 — Supreme Court (General Civil Procedure) Rules 2015 Order 56 — Acts Interpretation Act 1901 (Cth) s 33(4) — Acts Interpretation Act 1915 (SA) s 36(a) — Acts Interpretation Act 1954 (Qld) ss 24AA, 25 — Interpretation Act 1987 (NSW) s 47(1)(b) — Local Government Act 1993 (NSW) ss 334, 336(2), 338(5), (6), 672, 673, 674.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Grace QC with Mr C Dawlings	Holding Redlich
For the Defendant	Mr R Appudurai	Russell Kennedy

HIS HONOUR:

Introduction

Pursuant to s 94 of the Local Government Act 1989 (‘LGA’)[1] each council in Victoria must appoint a natural person to be its Chief Executive Officer (‘CEO’). The LGA prescribes functions the CEO is required to undertake. The Act also stipulates that the CEO must be employed pursuant to a contract. Save for the specification of performance criteria for annual performance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 337
Decision Date: 11 June 2021

CaseChat Overview and Summary

In Schneider v Warrnambool City Council, the court was presented with a dispute concerning the validity of the termination of the Chief Executive Officer's (CEO) employment by the Council. The CEO had been appointed under the Local Government Act 1989 and his employment was governed by a contract subject to relevant legislation. The Council purported to terminate the CEO's employment without providing any reasons, claiming 'no reason' as the basis for the termination.

The legal issues before the court were whether the Council had the power to terminate the CEO's employment without providing reasons, and if the termination was valid in light of the statutory requirement for natural justice. The court was required to determine if the CEO was denied procedural fairness and whether the decision to terminate was affected by bias due to pre-judgment. The court had to consider whether the CEO was entitled to remedies such as a declaration that the termination was unlawful and an order to resume his employment.

The court held that the power of appointment of the CEO included the power of termination, which was subject to compliance with the rules of natural justice. The CEO was denied procedural fairness as he was not given notice of the reasons for termination or an opportunity to respond to allegations of poor performance. The court found that the decision to terminate was affected by bias due to pre-judgment. Consequently, the purported termination was invalid and of no legal effect. The court granted the CEO the remedies he sought, including a declaration that the termination was unlawful and an order to resume his employment as CEO forthwith.

The final orders included a declaration that the termination of the CEO's appointment and employment was made in breach of the rules of natural justice, an order for the CEO to resume his appointment and employment as CEO, and an order for the Council to pay the CEO's costs.

Orders